Mark Lincoln

Breaking Ground is Russell McVeagh’s quarterly publication where our experts give their views on important developments in construction law. In this issue, we focus on three case law updates - two from New Zealand and one from the UK, with insights and observations regarding "late knowledge" building defects claims against local authorities, the ability to seek interim injunctions to further protect retention monies pending adjudication, and the right to adjudicate disputes under collateral warranties. Click here to read the update: https://lnkd.in/e5E_XXkF #breakingground #construction #constructionlaw #constructiondisputes #NZlaw

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Are you a principal or contractor who has received news that you’re about to be served with an adjudication application? Are you thinking of strategies to prevent the other party from commencing an adjudication application against you? Good luck with that! A recent WA Supreme Court case serves as a reminder to principals and contractors that the balance of convenience favours the party opposing the injunction application, and it would be very difficult to obtain an injunction to prevent an adjudication application. To read more about the case and what the key takeaways are for you and your business, read this summary prepared by Construction Partner, Lauren Cook, and Senior Associate, Cherry Lee 👉 https://bit.ly/4e93xoP

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In construction projects, issues requiring clarity over the interpretation of contractual clauses related to parties’ roles and obligations can make or break the successful outcome of a project and can lead to disputes that distract from project delivery. But how can parties effectively resolve questions of contractual interpretation without a lengthy trial? In this article, James Vernon, Kayleigh Rhodes, and Anna Benz delve into a recent Technology and Construction Court case and examine the conclusions given as to using Part 8 proceedings to tackle questions of contractual interpretation. #Contracts #Technology #Construction https://lnkd.in/e9jXkv2x

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The first step in dispute avoidance is to ensure your contract is manageable, commercially viable, and within your parameters for risk. This can be achieved by utilising our Risk Register template to assess the proposed contract to identify and plan to mitigate risk. If you require assistance from a claims & disputes specialist just get in touch. #contractreviews #dispuetavoidance #constructionclaims https://lnkd.in/dkDEg9Fe

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A recent construction case in Australia has confirmed that claims which have already been rejected by an adjudicator cannot be re-argued on a different basis in future adjudications. It may be acceptable, however, for a contractor to pursue further amounts relating to the same event – such as a single delay event - in a future adjudication, if there is no overlap with the amounts already considered by the first adjudicator. Tom Heading and Scott Ivey examine the court's decision and outline the practical implications stemming from the decision. Read the article: https://lnkd.in/eeGueuX9 #PinsentMasons #Construction #Contractors #Australia

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🌟 Project Highlight: Great Western Highway Upgrade 🌟 Jacobs & TfNSW engaged D-TAL to undertake a Detailed Design Road Safety Audit (RSA) for the Great Western Highway Upgrade at Coxs River Road, Little Hartley. The project involved upgrading 2.4km of the Great Western Highway to a new four-lane divided carriageway and grade-separated interchange. Our Contributions: 🚦 Identified potential hazards at intersections impacting lane discipline and vehicle turning movements. ⚠️ Highlighted hazards within the road corridor that may result in motorists being unable to recover/regain control of errant vehicles. 🚗 Identified potential risk for head-on collisions on two-way undivided high-speed roads. 🚴‍♂️ Assessed and raised potential hazards for cyclists and pedestrians, including but not limited to protected shared user paths and delineation adjacent to steep embankment slopes. At D-TAL, we pride ourselves on our ability to identify foreseeable hazards, aiming to influence and reduce fatalities and serious injuries for all road users. Fast, reliable, and competitive audits – ready when needed! 📞 1800 00 DTAL (3825) 📧 [email protected] 🌐 www.dtalengineering.com #DTAL #ProjectHighlight #RoadSafety #RoadSafetyAudit #RSA #CivilEngineering

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The 2024 edition of the Major Projects Guidance offers valuable advice at a crucial time when major infrastructure delivery faces increasing challenges at the local government level. It delivers comprehensive advice on procurement models and funding arrangements alongside best practice project and contract management for major development and infrastructure builds in Victoria. Maddocks authors Simone Holding and Shane Ridley, alongside EY contributors, have updated the guidance to reflect the current climate, pairing expert advice with practical case studies to assist councils facing today’s project complexities. Simone said, “Budgetary pressures and ongoing community expectations make it essential for projects to be meticulously planned and delivered more efficiently and effectively.” Read the publication here: https://loom.ly/V5MLCtY #Maddocks #EY #MajorProjectsGuidance #LocalGovernment #Construction #Infrastructure

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Tesseract International Pty Ltd v Pascale Construction Pty Ltd [2024] HCA 24 1. In late 2022, the South Australian Court of Appeal held that proportionate liability regimes in state and federal statutes do not apply to claims brought through domestic arbitration. This was because all concurrent wrongdoers could not be joined to the arbitration without their consent. 2. This led to uncertainty, as contractors and service providers could not rely on proportionate liability to limit their exposure in arbitration, even where multiple parties were responsible for the loss. 3. The High Court has now overturned this position, finding that proportionate liability laws do apply in arbitration, regardless of whether all relevant parties can be joined. 4. This creates a simpler pathway for contracting parties - either agree to exclude proportionate liability (where permitted), or the regime will apply in any court or arbitration proceedings. 5. This avoids situations where a party's understanding of their degree of risk changes due to the dispute resolution process selected. The High Court's decision provides much-needed clarity in this area and aligns the treatment of proportionate liability across court proceedings and domestic arbitration. This should help contracting parties better manage their risk when entering into agreements. The flexibility to exclude the regime where permitted is also a useful option. This High Court decision is likely to have a significant impact on how arbitration clauses are drafted in future contracts in Australia. Explicit inclusion of proportionate liability: Parties may start including express provisions in their arbitration clauses to specify that proportionate liability principles will apply in any arbitration proceedings. This provides contractual certainty. Exclusion of proportionate liability: Conversely, where parties wish to depart from the default position of proportionate liability applying, they will need to explicitly exclude it in their arbitration clause. Joinder of third parties: The High Court's decision means parties may be less inclined to seek to join additional third-party defendants to the arbitration, as proportionate liability can still apply without their participation. The arbitration clause may address procedures for joining additional parties. Risk allocation provisions: This may lead to more detailed risk allocation terms. Carve-outs for court proceedings: Contracts may include carve-outs specifying that certain claims must be brought in court rather than arbitration, to enable all relevant parties to be joined and the proportionate liability regime to be fully applied. The certainty provided by the High Court's decision may influence some parties' preferences between arbitration and litigation Overall, this appears to be a positive development for those practicing in Australian arbitration.

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BellBridge's collaborative approach ensures we become a genuine partner, integrating seamlessly into project teams. This has enabled us to seamlessly deliver procurement, project management, design, engineering, construction & commissioning scopes of work. If you are looking for a genuine partnership with successful project outcomes contact us below through the link in the comments. #ProjectManagement #ProjectSupport #EngineeringDesign #ProjectEngineering

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Enforcement of NSW's new practice standards for professional engineers has been delayed, highlighting ongoing challenges in regulatory preparedness and industry adaptation. This delay presents both risks and opportunities for engineers navigating these evolving standards. Read the full story here https://lnkd.in/gcMmbJ7q via Engineers Australia #Engineering #NSW #Construction 

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VIC CPD ONLINE | MANAGING KEY LIABILITY RISKS FOR ARCHITECTS 1 Formal CPD Point When: Wednesday 21 August, 12 - 1 PM Sponsored by Natspec OVERVIEW Whoever said that architecture was easy? Since every project involves a unique combination of site conditions, client preferences and design constraints – all of which architects are called on to manage in a constantly changing market – practicing architecture is inherently risky. However, many risks on construction projects can be reduced with knowledge, planning, and the implementation of good systems. Wendy Poulton, Manager Risk Services at informed by Planned Cover, will focus on a few of the key underlying risks that contribute to legal claims against architects in the domestic and commercial spheres, such as legislative compliance, managing sub-consultants and keeping the right records. Laurence Gottlieb, Broking Manager at Planned Cover, will explore a different aspect of risk management by providing an update on the insurance market for architects. CPD This presentation is equivalent to 1 total hour/point of formal CPD and will deliver outcomes related to the following Competencies from the National Standard of Competency for Architects: Practice Management and Professional Conduct PC 1: Understand the regulatory requirements and obligations pertaining to practice as an architect, including professional codes of conduct and obligations for continuing professional development and professional indemnity insurance. PC 2: Understand the role of quality assurance systems in facilitating efficient and timely delivery of architectural services.  PC 12, Understand how relevant building codes, standards and planning controls apply across architectural practice, including climate change implications, the principles of fire safety, and barriers to universal access.  PC 16: Understand risk management and mitigation principles and strategies – including safety in design, project risk, requirement for resilience from the impacts of climate change and appropriate insurances – across architectural services. Delivery and construction PC 59: Understand and mitigate risks associated with preparing and documentation.     #CPD #architect #natspec Register now  https://lnkd.in/g_jMX26Y                                                                                  

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The decision in Taylor Construction Group Pty Ltd v Adcon Structural Group Pty Ltd [2023] NSWSC 723 by the New South Wales Supreme Court has significant implications for post-termination payment claims in the construction sector. The case highlights the necessity for compliance and thoroughness when making final payment claims after contract termination. The dispute between Taylor Construction Group (Taylor) and Adcon Structural Group (Adcon) involved two projects Following the contract's termination, disagreements arose regarding the validity of Adcon's payment claims. The main issue was whether Adcon could rely on its second set of payment claims post-termination, given that its earlier claims were still contested. The Court ruled that under Section 13(1C) of the Security of Payment Act (SOPA), a contractor can only submit one payment claim after contract termination. Consequently, Adcon's subsequent claims, made without withdrawing the initial disputed ones, were invalid. This decision was a direct application of SOPA’s provisions. This judgment underscores the importance of ensuring that final payment claims post-termination are compliant and comprehensive. The limited opportunity for rectification post-termination emphasises the 'no second chance' principle under SOPA. The Taylor v Adcon case serves as a critical reminder for industry professionals about the need for precision in contractual adherence and the necessity of vigilance in payment claims.

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